The SEC and CFTC will write crypto rules now the CLARITY Act has stalled

The Senate rejected cloture on the CLARITY Act at 2.19pm on 15 September, 49 votes to 50 against a three-fifths threshold. A day later the chairman of the Securities and Exchange Commission told everyone what happens next.

Paul Atkins, writing on X on 16 September, thanked those who had worked on the bill “across the Administration, Congress, investors, and innovators”, and then set out the agency’s position: “I have been unequivocal: with or without legislation, we will act decisively within the SEC’s statutory authority to deliver certainty for American investors and for the entrepreneurs shaping our technological future.” He signed off with two words: “Stay tuned.”

Tyler Winklevoss had reached the same conclusion the night before, naming both regulators by their handles: “Now we move to Plan B. @SECPaulSAtkins and @ChairmanSelig writing Clarity through rulemaking.”

The CFTC chairman said this three weeks before the vote

Michael Selig, sworn in as the CFTC’s 16th chairman on 22 December 2025, put the fallback on the record at the inaugural meeting of the agency’s Innovation Advisory Committee on 20 August 2026, twenty-six days before the Senate voted.

His words: “If CLARITY continues to stall because of Democratic obstruction, the CFTC will utilize its existing authorities to begin establishing a regime for crypto asset markets. We owe it to the American people to do so.”

He also described the shape of it, and had already started the work: “I’ve directed the CFTC staff to begin exploring rules to codify a CFTC market structure for crypto assets using the agency’s existing authorities.” What he sketched was a new class of designated contract market, a crypto asset market, open both to firms already registered with the agency and to crypto exchanges that are not.

So the vote on 15 September was the trigger for a plan that had been written, staffed and announced in advance.

The SEC has been writing these rules since July 2025

Atkins launched Project Crypto on 31 July 2025, in a speech in Washington, describing “a Commission-wide initiative to modernize the securities rules and regulations”. The same speech directed the agency’s policy divisions to work with the Crypto Task Force led by Commissioner Hester Peirce, and asked staff “to evaluate the use of Commission authority to permit non-security crypto assets that are subject to an investment contract to trade on trading venues that are not registered with the Commission”.

That last line is the whole argument in miniature: a route to the outcome CLARITY promised, drawn from powers the agency already holds.

Since then the Commission has issued staff statements on meme coins and proof-of-work mining, three crypto no-action letters, six public roundtables, and on 17 March 2026 an interpretive release, “Application of the Federal Securities Laws to Certain Types of Crypto Assets and Certain Transactions Involving Crypto Assets”, which put the token taxonomy Atkins had trailed in November 2025 into effect on 23 March.

The two agencies have also been working together. Their staffs issued a joint statement on 2 September 2025 saying that “current law does not prohibit SEC- or CFTC-registered exchanges from facilitating trading of these spot crypto asset products”. Three days later Atkins and the then acting CFTC chairman, Caroline Pham, published a harmonisation statement naming four areas they would align: product and venue definitions, reporting and data standards, capital and margin frameworks, and coordinated oversight.

That statement also carries its own boundary marker, written by the two chairs themselves: the agencies would harmonise “to the extent possible and appropriate in the public interest under existing statutes”.

One commissioner runs the CFTC

The agency that has promised to build a crypto market structure regime is, today, a commission of one.

The CFTC’s own Chairman and Commissioners page lists a single sitting member: Michael Selig, chairman, sworn in 22 December 2025. The statute provides for five. Caroline Pham, who launched the crypto sprint, left on the day Selig arrived.

A rulemaking of the scale Selig described, a new category of registered exchange with leveraged retail crypto trading on it, would be proposed, put out for comment and adopted by one person.

A rule can be rewritten by the next chairman

Both agencies are clear that they are working inside the powers Congress has already given them. The Crypto Task Force’s founding release in January 2025 said it “will operate within the statutory framework provided by Congress and will coordinate the provision of technical assistance to Congress as it makes changes to that framework”.

That framework is the thing CLARITY would have changed. A statute reassigns jurisdiction and binds the next administration. An interpretation, an exemption and a rule are the tools available now, and each of them can be revisited by the commission that comes next, through the same process that made it.

Senator Tillis voted no in order to preserve a motion to reconsider, which he entered at 3.01pm on 15 September. The bill can come back. Until it does, the rules that govern American crypto markets will be written at 100 F Street and Three Lafayette Centre rather than on the Senate floor.